(1) Without affecting
the admissibility of any other evidence that may then be given, in any
proceeding for an offence against section 62B, 64, 64AA, 64A, 64AAA, 64B or
64C, or for an offence against this or any other Act in which the question
whether a person was or was not, or the extent to which the person was, under
the influence of alcohol at any material time is relevant, evidence may be
given of —
(a) the
provision of a sample of breath by the person for analysis, if provided within
4 hours after the driving, attempted driving, use or management of a motor
vehicle that gave rise to the alleged offence; and
(b) the
analysis of the sample of breath by breath analysing equipment operated by an
authorised person; and
[(c) deleted]
(ca) the
manner in which breath analysing equipment indicated the result of an
analysis; and
(d) the
taking of a sample of blood from the person by a prescribed sample taker, if
taken within 4 hours, or 12 hours if the sample was taken under
section 66(8B), after the driving, attempted driving, use or management of a
motor vehicle that gave rise to the alleged offence; and
(e) the
analysis of the sample of blood for alcohol by an analyst; and
(f) the
analysis result obtained pursuant to section 68 or 69.
(2) In any proceeding
such as is mentioned in subsection (1), a certificate in the prescribed form
—
(a)
purporting to be signed by the Commissioner of Police, certifying that a
person therein named is, or was at the material time, an authorised person; or
(b)
purporting to be signed by the chief executive officer of the Chemistry Centre
(WA), certifying that a person therein named is, or was at the material time,
an analyst; or
[(ba) deleted]
(bb)
purporting to be signed by an authorised person —
(i)
certifying that a person therein named provided a sample
of breath for analysis on a date and at a time stated therein; and
(ii)
certifying that the sample of breath so provided was
analysed by apparatus operated by the authorised person and that apparatus was
breath analysing equipment within the meaning of section 65; and
(iii)
certifying that the breath analysing equipment was
operated by the authorised person in the prescribed manner and that the
regulations relating to analysis by breath analysing equipment of the relevant
type were complied with; and
(iv)
certifying that the breath analysing equipment indicated
a result in the prescribed manner at the conclusion of the analysis; and
(v)
setting out the analysis result obtained from the
analysis; and
(vi)
certifying that in accordance with section 68(9) the
authorised person completed, signed, and handed to the person by whom the
sample of breath was provided, a statement as required by that subsection, or
that the authorised person complied with the requirements of that subsection
by signing, dating, and handing to the person, a statement printed by the
breath analysing equipment; and
(vii)
certifying that the authorised person was at the material
time an authorised person;
or
(c)
purporting to be signed by a technologist of a body approved by the Minister,
certifying that identified sampling equipment comprises the prescribed items,
that those items have been prepared by the technologist and are sterile and
fit for the purpose of taking a sample of blood for analysis if used not later
than a specified date; or
(d)
purporting to be signed by a prescribed sample taker, certifying that an
identified sample of blood was taken from a named person, on a date and at a
time therein specified, in accordance with the regulations using identified
sampling equipment, which was received in a described condition from an
identified person; or
(e)
purporting to be signed by an analyst, certifying either or both of the
following, namely, that an identified sample of blood taken from a named
person was analysed for alcohol in accordance with the regulations, and the
analysis result obtained from the analysis,
is prima facie
evidence of the matters therein certified or set out, without proof of the
signature of the person purporting to have signed it or proof that the
purported signatory was the Commissioner of Police, the chief executive
officer of the Chemistry Centre (WA), an authorised person, a technologist, a
prescribed sample taker or an analyst (as is relevant).
[(2a) deleted]
(3) In any proceeding
for an offence against a provision mentioned in subsection (1), evidence by an
authorised person of any of the following is prima facie evidence of that fact
—
(a) the
apparatus operated by the authorised person pursuant to section 68 was breath
analysing equipment;
(b)
breath analysing equipment was operated by the authorised person in the
prescribed manner and the regulations relating to analysis by breath analysing
equipment of the relevant type were complied with;
(c)
breath analysing equipment indicated a result in the prescribed manner on the
occasion of its operation.
(3a) Without affecting
the admissibility of any other evidence that may then be given, in any
proceeding for an offence against section 62C, 64AC, 64B or 64C, or for an
offence against this or any other Act in which the question whether a person
was or was not, or the extent to which the person was, under the influence of
or impaired by drugs at any material time is relevant, evidence may be given
of —
(a) the
taking of a sample of blood from the person by a prescribed sample taker, if
taken within 4 hours, or 12 hours if the sample was taken under
section 66(8B), after the driving, attempted driving, use or management of a
motor vehicle that gave rise to the alleged offence; and
[(b) deleted]
(c) the
analysis of a sample of blood for drugs by a drugs analyst and the result
obtained from the analysis; and
(d) the
conduct, condition or appearance of the person at or after the time of the
driving or attempted driving of a motor vehicle that gave rise to the alleged
offence or during a driver assessment; and
(e)
conduct, a condition or an appearance associated with a person who has
consumed or used a particular drug or particular drugs; and
(f) the
usual effect that conduct or a condition associated with a person who has
consumed or used a particular drug or particular drugs has on a person’s
capacity to have proper control of a motor vehicle; and
(g) the
provision of a sample of oral fluid by the person under section 66D, if
provided within 4 hours after the driving, attempted driving, use or
management of a motor vehicle that gave rise to the alleged offence; and
(h) the
analysis for drugs by a drugs analyst of a sample of oral fluid provided under
section 66D, and the result obtained from the analysis.
(3b) In any
proceedings such as is mentioned in subsection (3a), a certificate in the
prescribed form —
(a)
purporting to be signed by the chief executive officer of the Chemistry Centre
(WA) certifying that a person named therein is, or was at the material time, a
drugs analyst; or
(b)
purporting to be signed by a technologist of a body approved by the Minister,
certifying that identified sampling equipment comprises the prescribed items,
that those items have been prepared by the technologist and are sterile and
fit for the purpose of taking a sample of blood for analysis if used not later
than a specified date; or
[(c) deleted]
(d)
purporting to be signed by a prescribed sample taker, certifying that an
identified sample of blood was taken from a named person, on a date and at a
time therein specified, in accordance with the regulations using identified
sampling equipment, which was received in a described condition from an
identified person; or
[(e) deleted]
(f)
purporting to be signed by a drugs analyst certifying either or both of the
following —
(i)
that an identified sample of blood or oral fluid taken
from or provided by a named person was analysed for drugs;
(ii)
the analysis result obtained from the analysis;
or
(g)
purporting to be signed by an approved expert describing conduct, a condition
or an appearance associated with a person who has consumed or used a drug or
drugs specified in the certificate; or
(h)
purporting to be signed by an approved expert setting out the usual effect
that conduct or a condition associated with a person who has consumed or used
a particular drug or particular drugs has on a person’s capacity to have
proper control of a motor vehicle; or
(i)
purporting to be signed by a police officer describing
the conduct, condition or appearance of a person at or after the time the
person drove or attempted to drive a motor vehicle; or
(j)
purporting to be signed by a police officer certifying the following —
(i)
that the police officer conducted a driver assessment on
a person named in the certificate on a date and at a time stated in the
certificate;
(ii)
that the assessment was conducted in accordance with the
regulations,
and describing the
conduct, condition or appearance of the person during the assessment; or
(k)
purporting to be signed by an authorised drug tester certifying that, under
section 66D, an identified sample of oral fluid was collected by the
authorised drug tester in accordance with the regulations from a named person
on a date and at a time specified in the certificate using identified sampling
equipment which was received in a described condition from an identified
person,
is prima facie
evidence of the matters therein certified or set out, without proof of the
signature of the person purporting to have signed it or proof that the
purported signatory was such chief executive officer, or was such a
technologist, or was a prescribed sample taker, drug analyst, approved expert,
police officer or authorised drug tester.
(3c) In any proceeding
for an offence against section 67 in relation to a requirement to provide a
sample of the person’s breath for analysis under section 66, 67AC, 67AD
or 68A a certificate in the prescribed form purporting to be signed by the
Commissioner of Police, certifying that a person therein named is, or was at
the material time, an authorised person is prima facie evidence of the matters
therein certified, without proof of the signature of the person purporting to
have signed it or proof that the purported signatory was the Commissioner of
Police.
(3d) In any proceeding
for an offence against section 67AC, 67AD, 67A(1) or 68A of failing to comply
with a requirement made pursuant to section 66D(1) a certificate in the
prescribed form purporting to be signed by the Commissioner of Police
certifying that a person therein named is, or was at the material time, an
authorised drug tester is prima facie evidence of the matters therein
certified, without proof of the signature of the person purporting to have
signed it or proof that the purported signatory was the Commissioner of
Police.
(4) Nothing in this
section is to be construed as precluding or restricting the introduction of
any competent evidence, whether in addition to, or independent of, any
evidence for which provision is made by this section, bearing on the question
of whether a person was or was not guilty of an offence against this or any
other Act.
(5) Except at the
instance, or with the consent, of the accused in any proceeding such as is
mentioned in subsection (3a), a certificate mentioned in subsection (3b)(f),
(g) or (h) must not be adduced, and if adduced must not be admitted, in that
proceeding unless a copy of the certificate is proved to have been served on
the accused at least 28 days before the day on which the certificate is
adduced.
(5a) If subsection (5)
has been complied with in relation to a certificate, the accused must not
challenge or call into question any matter certified or set out in the
certificate unless —
(a)
notice of the accused’s intention to do so is proved to have been served
on the prosecutor at least 14 days before the day on which the certificate is
adduced; or
(b) the
court, in the interests of justice, gives the accused leave to do so.
(5b) A notice under
subsection (5a)(a) must specify the matter that is to be challenged or called
into question.
(5c) Except at the
instance, or with the consent, of that person, evidence that a person
underwent a preliminary oral fluid test and of any indication provided by such
a test must not be adduced, and if adduced must not be admitted, in any
proceedings other than proceedings for an offence against section 67AB, 67AC,
67AD, 67A, 68A or 71BA.
(5d) Except as
provided by subsection (3a) or (3b) or at the instance, or with the consent,
of that person, evidence that a person provided a sample of the person’s
oral fluid for drug testing must not be adduced, and if adduced must not be
admitted, in any proceedings other than proceedings for an offence against
section 67AB, 67AC, 67AD, 67A, 68A or 71BA.
(5e) Except at the
instance, or with the consent, of that person, evidence of the result of the
drug testing of a sample of a person’s oral fluid by an approved device,
must not be adduced, and if adduced must not be admitted, in any proceedings
other than proceedings for an offence against section 67AB, 67AC, 67AD, 67A,
68A or 71BA.
(6) Except at the
instance, or with the consent, of that person, evidence that a person provided
a sample of the person’s breath for a preliminary test and of any
indication provided by such a test must not be adduced, and if adduced must
not be admitted, in any proceedings other than proceedings for unlawful arrest
or for an offence against section 64AB, 67, 67AA, 67AC, 67AD, 67A or 68A.
(7) In this section
—
approved expert means a qualified clinical
pharmacologist approved by the Minister for the purpose of this section by
notice published in the Gazette ;
technologist means —
(a) a
person registered as an analyst under section 203 of the
Health (Miscellaneous Provisions) Act 1911 ; or
(b) a
person approved, or belonging to a class of persons approved, by the Minister
to prepare sampling equipment.
[Section 70 amended: No. 71 of 1979 s. 12; No. 82
of 1982 s. 18; No. 121 of 1987 s. 9; No. 11 of 1988 s. 13; No. 19 of 1990 s.
8; No. 13 of 1992 s. 12; No. 39 of 2000 s. 35 and 36; No. 6 of 2007 s. 15; No.
10 of 2007 s. 43; No. 39 of 2007 s. 37; No. 8 of 2012 s. 37 and 38; No. 19 of
2016 s. 101; No. 25 of 2016 s. 11, 39, 40 and 54; No. 27 of 2020 s. 29.]